United States v. Mitchell

No. 75-613-Cr-WM (S.D. Fla. April 26, 1976)

The magistrate denies a motion to dismiss a 32-count indictment brought under the Marine Mammal Protection Act for animal takings which occurred in Bahamian waters. The doctrine of objective territorial jurisdiction allows the United States to extend its criminal jurisdiction to reach extra-territorial actions of United States citizens. The legislative history of the Marine Mammal Act supports the view that Congress intended to impose criminal sanctions on all takings of marine mammals by its citizens regardless of where they transpire during the general statutory moratorium. Conspiracy to violate regulations promulgated under the Act constitutes a violation of the Act itself. An allegation that the marine mammals involved moved in interstate commerce is not an essential element of all offenses under the Act.

Counsel for Plaintiff
Donald Ferguson, Asst. U.S. Attorney
300 Ainsley Bldg.
14 NE 1st Ave.
Miami FL 33132
(305) 350-4471

Counsel for Defendants
Edward B. Galante Asst. Federal Public Defender
505 Ainsley Bldg.
Miami FL 33132
(305) 350-4391

[6 ELR 20683]

Sorrentino, Magistrate:

ORDER DENYING MOTION TO DISMISS

The two defendants have jointly moved to dismiss this thirty-two count indictment alleging offenses under the Marine Mammal Protection Act of 1972, essentially upon two grounds, 1) that each count is defective for failure to allege that the marine animals involved moved in interstate commerce, and 2) that certain counts are defective in that they relate to activities which occurred in the territorial waters of the Bahamas, and not within the jurisdiction of the United States.

The contention that 16 U.S.C. § 1361(5)(A) and (B) makes the movement of a marine mammal or marine product in interstate commerce an essential element of all offenses under the Act is untenable. Section 1361 is a statement of specific findings and declarations of policy by the Congress. Among these is the finding in § 1361(5)(A) and (B) that all marine mammals and marine mammal products either move in interstate commerce or affect the balance of marine ecosystems in a manner which is important to other animals and animal products which move in interstate commerce, and that the protection and preservation of such mammals is therefore necessary. There can be no need in a criminal prosecution under the Act for the government to prove that which the Congress has already declared to be a factual underpinning for the Act.

The contention of the defendants that the Act does not reach those acts which allegedly occurred in the territorial waters of the Bahames requires more detailed analysis. The basic theory of the defense is that § 1362(15)(A) and (B) and § 1372(a)(1) limit coverage of the Act to offenses occurring in any of the following areas:

(1) territorial waters of the United States

(2) fisheries zone established pursuant to Act of October 14, 1966

(3) high seas

The government responds that in the subject counts, these defendants are not chargedwith violations subject to geographical limitations, but rather with violations of a presently in force general moratorium on all takings of marine mammals by any United States citizen wherever such takings may occur, with certain specified statutory exceptions for Indian, Aleut, or Eskimo citizens living on the coast of the North Pacific Ocean or the Arctic Ocean.

It is clear that Congress may, if it wishes, extend the criminal jurisdiction of the United States not only to acts of its own citizens committed within the territory or territorial waters of other nations, but also under proper circumstances to the acts of citizens of other nations committed wholly outside the United States, if those acts are intended to produce and producing detrimental effects within the United States. This is the doctrine of objective territorial jurisdiction announced by the Supreme Court in Strassheim v. Dailey, 221 U.S. 280 (1911), and followed as recently as last year by the Fifth Circuit. United States v. Winter, 509 F.2d 975 (5th Cir. 1975); United States v. Fernandez, 496 F.2d 1294 (5th Cir. 1974); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967). That the Congress was aware of this power is clear from the legislative history of the Act, 1972 U.S. Code Cong. and Admin. News 4144, at 4154, which records consideration given by the Committee on Merchant Marine and Fisheries to the imposition of restrictions upon investments by United States citizens in companies taking animals from depleted or endangered species or stocks in foreign countries. The proposal was rejected so that furthere investigation of the need for such regulation might be conducted. The defendants cite this portion of the legislative history as indicative of the intention of Congress not to include acts committed within the jurisdiction of foreign nations in the coverage of this Act. In view of other provisions of the legislative history and because the paragraph in question specifically refers to investments by United States interests in foreign countries rather than the kind of direct action endangering marine mammals prohibited by the Act, the view taken by the defense is much too restrictive.

The remaining question is whether Congress did by this Act exercise its power to impose criminal sanctions upon certain acts of its citizens, regardless of where they transpire. A reading of the legislative history indicates that it did. The second paragraph of the history asserts in part that:

The purpose of this legislation is to prohibit the harassing, catching and killing of marine mammals by U.S. citizens or within the jurisdiction of the United States. 1972 U.S. Code Cong. and Admin. News 4144 (Emphasis added.)

Obviously, the categories of prohibited acts by citizens of the United States or persons within the jurisdiction of the United States are disjunctive. Congress apparently intended to extend coverage of the Act to actions in contravention thereof by citizens of the United States wherever such offenses might occur. This is not a novel concept in the law. Even a state within the Union may control the conduct of its own citizens outside its own boundaries with respect to matters in which the state has a legitimate interest and where there is no conflict with federal legislation. Skiriotes v. Florida, 313 U.S. 69 (1941); Felton v. Hodges, 374 F.2d 337 (5th Cir. 1967).

Because of the complexity and length of this Indictment, a discussion of the statutory provisions charged therein can best be accomplished by treating each of six separate counts or groups of counts involving different offenses. Many of the counts allege violation of 18 U.S.C. § 2, the aider and abettor statute, in addition to other statutes. This section is not involved in the jurisdictional issues raised by this motion, and will therefore not be mentioned further.

The first category contains a single count, count I, which alleges a violation of 18 U.S.C. § 371, the general conspiracy statute. [6 ELR 20684] The objects of this conspiracy are declared to be violations of the various statutory and regulatory provisions which will be treated in discussion of the other counts. As a general proposition, it may be stated at this point that 16 U.S.C. §§ 1373 and 1382 provide authority for the Secretary to prescribe appropriate regulations under the Act. Violations of these regulations are, of course, violations of the Act.

The second category includes counts 2, 3, 4, 5, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22. Each of these counts charges offenses, the taking of marine mammals, alleged to have occurred within the territorial waters of the Bahamas. The offense alleged is a violation of 50 C.F.R. § 216.11(c), which makes it unlawful for:

Any person subject to the jurisdiction of the United States to take any marine mammal during the moratorium.

It will be noted that this is an absolute prohibition, without geographical limitation, unlike §§ 216.11(a) and (b) which prohibit takings of marine mammals at all times, not limited to the duration of the moratorium, but which are limited in scope to the high seas and waters and lands under the jurisdiction of the United States. The absolute moratorium was established by 16 U.S.C. § 1371 and § 1362(7), and remains in effect. The statute mentioned in this group of counts, § 1375(b), is merely a penalty provision, providing the penalty for various offenses, including that defined in 50 C.F.R. § 216.11(c).

The third category includes counts 6, 7, 8, 9, 10, and 11. These counts all allege offenses, the taking of marine mammals, which occurred on the high seas, in violation of 16 U.S.C. § 1372(a)(1), which specifically prohibits such takings. Again, the penalty provision, 16 U.S.C. § 1375(b), is charged.

The fourth category encompasses counts 23, 25, 26, 27, 28, 30, 31, and 32. These counts allege offenses, the possession or transportation and offering for sale of marine mammals, in violation of 50 C.F.R. § 216.13(b), which prohibits, inter alia, the possession or transportation and offering for sale of marine mammals taken in violation of 50 C.F.R. § 216.11(c). The latter regulation is also charged in these counts, and is, as discussed above, the prohibition against all takings during the moratorium. The penalty provision, 16 U.S.C. § 1375(b), is again charged. The situs of the offense alleged in these counts is not charged, jurisdiction depending on the status of the defendants as "persons subject to the jurisdiction of the United States," rather than on geography.

The fifth category includes a single count, count 24, alleging the possession of marine mammals in violation of 16 U.S.C. § 1372(a)(3)(A), which prohibits, inter alia, possession of animals taken in violation of § 1372(a)(1). Such takings must have occurred on the high seas, as required by § 1372(a)(1), although the situs of the takings is not alleged in the count. The penalty provision, 16 U.S.C. § 1375(b), is charged.

The foregoing analysis of the indictment indicates that each count therein charges an offense properly within the jurisdiction of the United States and this court. Thereupon, it is

ORDERED AND ADJUDGED that this motion to dismiss is denied.

DONE AND ORDERED at Miami, Florida, this 26th day of April 1976.